dismissed EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 9, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a market and deli, sought to employ the Beneficiary as a f()od service 
supervisor. It requested his classification as a skilled worker under the third-preference, immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(I ), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national with at least two years of training or experience for lawful permane1it resident 
status. 
After first approving the petition, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that as of approvaL the Petitioner did not establish the 
Bencticiary's possession of the minimum experience require1· for the offered position. 1 
On appeal, the Petitioner submits additional evidence and asserts the Beneficiary's qualifications lor 
the job. 
Upon de novo review, we will dismiss the appeaL 
I. THE EMPLOYMENT-BASED, IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer seeking 
to permanently employ a foreign national in the United States must obtain Department of Labor 
(DOL) certification of the job opportunity. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). The DOL must determine whether the country has able, willing, qualified, and 
available workers for an ol1ered position, and whether employment of a foreign national would hurt the 
wages and working conditions of U.S. workers with similar jobs. !d. If the DOL certifies a foreign 
national to till a position, an employer must next submit the certification with an immigrant visa 
petition to U.S. Citizenship and Immigraiion Services (USCIS). See section 204 of the Act, 8 U.S.C. 
1 
The Director inilially revoked !he petition concluding that the Petilioner also did nol demonstralc ils ability 10 pay the 
protTered wage. Further finding that the Petitioner \Villfully misrepresented a material fact on the accompanying. 
certiflcalion from the U.S. Deparlmenl of Labor (DOL). the Director invalidated that document. After granting laler 
motions to reopen and reconsider by the Petitioner, however, the Director issued a new notice of intent to revoke 
(NOIR). Thus, the second NOIR forms the basis oflhe revocation at issue here. 
Mallcr of A- Corp. 
§ 1154. If USCIS approves a petition, a foreign national may finally apply for an immigrant visa 
abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. 
§ 1255. 
Before a foreign national obtains lawful permanent residence, however, USCIS may revoke a 
petition's approval .for "good and sufficient cause." Section 205 of the Act. 8 U.S.C. § II 55. If 
supported by the record, a petition's erroneous approval may justify its revocation. Malter of' Ho, 
19 l&N Dec. 582, 590 (BIA I 988) 2 USC IS properly issues a notice of intent to revoke where the 
record as of the notice's issuance - if unexplained or unrcbutted - would have warranted the 
petition's denial. See Mal/er of Estime, 19 l&N Dec. 450, 451 (BIA 1987). Similarly, revocation 
lies if the record - including any explanation or rebuttal evidence from a petitioner - would have 
warranted denial. !d. at 451-52. 
11. THE MINIMUM EXPERIENCE REQUIRED FOR THE OFFERED POSITION 
A petitioner must establish a beneficiary's possession, by a petition's priority date, 3 of all DOL­
certified job requirements. Maller of' Wing's Tea House. 16 I&N Dec. 158, 160 (Acting Reg'! 
Comm'r 1977). Here, the accompanying labor certification states the minimum requirements of the 
offered position of food service supervisor as two years of experience in the offered position or as a 
cook. 
On the labor certification, the Beneficiary attested that, before the petition's priority date, he gained 
only about 15 months of full-time, qualifying experience in the United States from December 1999 
to June 2000 and from July 2000 to May 2001. In response to the Director's first NOlR, which the 
lack of two year of experience, however, the Petitioner claimed that the Beneficiary had additional, 
qualifying experience. 
Despite these claims, the Director issued the second NOIR for good and suf'ticient cause. The NOIR 
noted that, contrary to the instructions of the labor certification, the Beneficiary did not list the 
additional, purported employment on the labor certification. The omission casts doubt on the 
Bcneticiary's claimed, qualifying experience. See Maller ufLeung,!6 l&N Dec. 12, 14-15 (Distr. 
Dir. 1976), disapp'd of' on anorher ground by Maller of Lam, 16 l&N Dec. 432,434 (BIA 1978) 
(finding that an adjustment applicant's claim of qualifying experience not credible where it was 
2 The record here indicates that the Beneficiary intended to apply for adjustment of status under the ''portability" 
provision. S'ee section 204U) of the Act (fcquiring a petition to ·'remain valid .. if a beneficiary's adjustment application 
is unadjudicated for at least 180 days, and he or she receives a new job offer in the same or similar occupation as the job 
listed on the petition). If the petition was erroneously approved. however, the I3eneficiary's eligibility to port would not 
bar its revocation. See Herrera v. USCIS, 571 F.3d 881,887 (9th Cir. 2009) (explaining that, ''in order for a petition to 
'remain' valid, it must have been valid from the start"): see also Maller of AI Wazzon, 25 l&N Dec. 359, 367 (AAO 
2010) (holding that a beneficiary of a pot1able petition must have been "entitled'' to the requested classification). 
'This petition's priority date is September 19, 2003, the date an office within the DOL's employment service system 
accepted the certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's 
priority date). 
2 
Mauer of A- Corp. 
omitted from the underlying labor certification). The NOlR also pointed out inconsistencies of 
record regarding the Beneficiary's claimed positions and duties with former employers listed on the 
labor certification. Unexplained and unrebutted, these discrepancies cast significant doubt on the 
Beneficiary's qualifications for the position and would have warranted the petition's denial. A tier 
reviewing the Petitioner's response to the second NOlR, the Director revoked the petition's approval 
finding that the evidence submitted was not sufficient to establish that the Beneficiary had the 
required qualifying experience. For the reasons that follow, we lind that the record supports the 
Director's decision. 
On the labor certification, the Beneficiary stated that a New Jersey donut shop employed him as a 
"baker/counter" for about I 0 months from July 2000 to May 2001. The Petitioner provided an 
employment verification letter, affidavits concerning the claimed experience, and some tax 
documents. However, this evidence indicated the Beneficiary's employment in a different position 
than stated on the labor certification. A letter from the employer stated that the Beneficiary worked 
as an "Assistant Manager'' Similarly, affidavits trom the employer and purported former coworkers 
of the Beneficiary described him as a "Supervisor." In addition, copies of the Beneficiary's federal 
income tax returns for 2000 identified him as a "Clerk." The differing job titles cast doubt on the 
Beneficiary's claimed, qualifying experience at the donut shop. See Ma/ler ol Ho, 19 l&N Dec. at 
591 (requiring a petitioner to resolve inconsistencies of record by independent objective evidence). 
The Petitioner also provided copies of IRS Forms W-2, Wage and Tax Statements, and payroll 
records indicating the donut shop's employment of the BeneJiciary during the claimed period, but 
these documents do not substantiate the title or duties of the Bencticiary. 
On appeal. the Beneficiary attests that,. although he told the attorney who prepared the labor 
certification that he worked as an assistant supervisor, the attorney listed the Beneficiary's job title 
as baker/counter. The Beneficiary similarly blames his tax preparer for listing the incorrect job title 
of clerk on his 2000 tax returns. However, the Beneficiary's claims regarding his ignorance of the 
contents of the forms prepared on his behalf is not sufficient to establish that he gained the alleged 
qualifying experience. Moreover, on a prior labor certification tiled on the Beneficiary's behalf; the 
Beneficiary attested that he was "unemployed" from 1998 to 2001. If the Beneficiary did not work 
during that period, the record docs not explain why this certification states his employment at the 
donut shop from July 2000 to May 2001. Thus, despite the tax and payroll evidence, the record does 
not establish the Beneficiary's claimed I 0 months of qualifying experience at the New Jersey donut 
store. See flilal/er o(Ho, 19 I&N Dec. at 591 (holding that doubt cast on any aspect of a petitioner's 
proof may lead to a reevaluation of the reliability and sutliciency of the remaining evidence). 
The Beneficiary also stated on this labor certification that he worked as a shift manager at a 
Pennsylvania pizza shop for about live months, tt·om December 1999 to June 2000. The Petitioner 
submitted copies of Forms W-2 indicating the shop's employment of the Beneficiary in 1999 and 
2000. The Form W-2 for 2000, however, indicates that the Beneficiary received only $1 ,588.39. 
That amount does not retlect tive months of full-time employment in 2000 as the Beneficiary claims. 
Also, the Beneficiary's tax returns for 1999 and 2000 identify him as a "Cashier'' and a "Clerk," not 
as a shift manager. ' 
3 
Mauer of A- Corp. 
On appeal, the Beneficiary attests that he listed his occupation on his I 999 tax returns as cashier 
because that was his job title when he filed the returns in 2000. But the record does not explain why 
the Beneficiary stated on the prior labor certification that he was unemployed lrom 1998 to 200 I nor 
does it explain the low wages received when the claimed employment was allegedly full-time. As 
noted, the Petitioner inust resolve evidentiary inconsistencies, but it has not done so here. See id. The 
record therefore does not establish the Beneficiary's claimed five months of full-time experience at 
the Pennsylvania pizza shop lrom 1999 to 2000. Based on the foregoing, we lind that the record 
does not demonstrate the Beneliciary's possession of the experience claimed on the labor 
certification. 
We likewise tind the claims of other past employment insufficient to qualify the Beneliciary for the 
offered job. In response to the second NOIR and on appeal, the Petitioner states that the Beneficiary 
also gained experience with a New York donut shop for l 0 months in 2002, a New Jersey donut 
shop for approximately eight months in I 999, and at an Indian bakery from March I 996 to May 
I 998. None of this experience was reported on the labor certilication, which casts doubt on the 
Beneficiary's claimed, qualifying experience. See Maller of Leung,l6 J&N Dec. at I 4-15 (linding 
that an adjustment applicant's claim of qualifying experience not credible where it was omitted trmn 
the underlying labor certilication). Moreover. as discussed below, there are numerous evidentiary 
discrepancies that have not been explained or overcome by the Petitioner. 
The Petitioner submitted a letter and a Form W-2 indicating that a New York donut shop employed 
the Beneficiary as a baker for I 0 months in 2002. However, on a Form G-325A, Biographic 
Information, submitted with his application for adjustment of status, the Beneficiary indicated that 
he did not live in New York in 2002. In an atlidavit the Beneficiary stated that he lived in New 
York when he worked at the donut shop in 2002, but that he listed his addresses on the Form G-
325A as New Jersey and Massachusetts because these were his "permanent" addresses with relatives 
where he received mail. We are not persuaded by this explanation, given the experience's omission 
from the labor certification. Also, the Petitioner submitted a copy of another 2002 Form W-2 that 
the donut shop purportedly issued the Beneficiary. The second form identities the Beneficiary by a 
slightly different name than the first form and lists his address in a different state. The second form 
also lists slightly ditTerent wage and tax amounts. The record does not explain the differing Forms 
W-2, casting doubt on their authenticity. See Maller of1lo, 19 I&N Dec. at 591 (holding that doubt 
cast on any aspect of a petitioner's proof may lead to a reevaluation of the reliabilitv and sufliciencv - . of the remaining evidence). The record therefore does not establish the Bcneliciary's claimed I 0 
months ~f qualifying experience at the New York donut shop in 2002. 
The Petitioner also submitted a letter and a Form W-2 indicating that a New Jersey donut shop 
employed the Beneliciary for about eight months in I 999. This employment, however, conflicts 
with the Beneficiary's prior attestation of unemployment trom I 998 to 200 I. The Petitioner has not 
addressed this inconsistency. We therefore tind that the record docs not establish the Beneliciarv's 
qualifying experience at the New Jersey donut shop in I 999. · " 
4 
Maner (}fA- Corp. 
On appeal, the Petitioner also asserts the Beneficiary's quali1ications based on his purported 
employment by a bakery in India. The Petitioner and the Beneficiary contend that he worked full­
time at the bakery as a manager fl·om March 1996 to May 1998. Although the bakery reportedly no 
longer conducts business, the record contains recent aflidavits from its purported former owner and a 
former customer and co-worker of the Beneficiary. The former owner's prior 2001 letter on bakery 
stationery did not indicate that the Beneficiary cooked or supervised food preparation, one of the 
primary job duties stated on the labor certification for the offered position. In a more recent 
affidavit, the former owner asserts the Beneficiary's management of food preparation, stating that he 
did not know the letter should have listed all of the Beneficiary's duties. 
The atlidavits, however, are insufficient to establish the Beneficiary's claimed qualifying experience 
at the bakery. Because of the employment's omission fi·om the labor certification, the Petitioner 
must submit more reliable evidence - such as copies of contemporaneous business records, tax 
filings, or government documents- to corroborate the Beneficiary's claimed experience. See t'vfatler 
of Ho, 19 l&N Dec. at 591 (requiring. a petitioner to resolve inconsistencies of record by 
independent, objective evidence pointing to where the truth ·lies). The Petitioner has not 
demonstrated, or even asserted, the unavailability of such evidence. See 8 C.F.R. § 103.2(b)(2)(i) 
(requiring a petitioner to demonstrate the unavailability of primary evidence before USCJS will 
consider secondary materials). 
Because the Beneficiary listed his employment by the bakery on a prior labor ccrti fication, the 
Petitioner argues that the prior filing confirms his claimed, qualifying experience. The prior 
certification. however, does not establish the Beneficiary's requisite experience in the offered 
position or as a cook. Like the bakery's prior letter, the prior certilication docs not indicate that the 
Bene1iciary's job duties included supervising food preparation or cooking. As such, the record does 
not establish the Beneficiary's claimed qualifying experience at the Indian bakery. 
For the foregoing reasons, the record as of the petition's approval did not establish the Beneficiary's 
possession. by the petition's priority date, of the minimum experience required for the offered 
position. 
Ill. CONCLUSION 
The record as of the petttton's approval did not establish the Beneficiarv's possesston, by the 
petition's priority date, of the minimum experience required for the offered position. We will 
therefore affirm the revocation of the petition's approval. 
ORDER: The appeal is dismissed. 
Cite as Maller of A- Cmp .. ID# 420774 (AAO Mar. 9, 2018)